FMLA Plaintiff Must Establish Incapacity, Not Just Chronic Condition, Eleventh Circuit Holds
By: Joseph White
The Eleventh Circuit recently overturned a $1 million dollar verdict in an FMLA interference and retaliation case because the plaintiff failed to establish that his chronic health condition—depression—rendered him incapacitated (i.e., actually unable to work). See Hurley v. Kent of Naples, Inc., 2014 WL 1088293, at *5 (11th Cir. March 20, 2014).
In Hurley, the plaintiff suffered from severe depression and anxiety. He notified his employer that he needed to take an extended vacation (which he intended to use for medical treatment), but did not indicate to his employer or ever otherwise allege that “he was unable to work or incapacitated” because of his depression. Id. at *22.
The employer denied his vacation request and terminated him for insubordination, prompting the plaintiff to sue for FMLA interference and retaliation. The case went to trial and the plaintiff obtained a verdict in excess of $1 million dollars.The employer appealed, arguing that the plaintiff failed to prove that his request for time off constituted a request for qualifying FMLA leave. The Eleventh Circuit agreed. The FMLA, it observed, requires a plaintiff to prove not only that he possesses a serious health condition which would benefit from time off for treatment, but that the condition actually renders him unable to work. As the appellate court stated:
[T]he FMLA does not extend its potent protection to any leave that is medically beneficial leave simply because the employee has a chronic health condition. Rather, the FMLA only protects leave for “[a]ny period of incapacity or treatment for such incapacity due to a chronic serious health condition.” The regulations define “incapacity” as “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.”
Since the plaintiff did not allege, much less establish, that his depression and anxiety incapacitated him from working, the trial court should have granted judgment in the employer’s favor.
[Plaintiff] admits that his leave was not for a period of incapacity. And, [Plaintiff] does not contend that his leave would have been “treatment for such incapacity.” In fact, [plaintiff] testified that he could not predict any periods of incapacity from his condition. Accordingly, [plaintiff] has not met his burden of proving that his leave request qualified for protection under the FMLA.
The decision raises the bar for FMLA plaintiffs in interference and retaliation cases. The “protected activity” required to state such a claim must consist of actual qualifying medical leave. Stated differently, a denied request for medical leave will only trigger FMLA exposure if the plaintiff can demonstrate that he or she was actually unable to work (i.e., incapacitated)—not just that he or she requested time off for treatment of a serious health condition.